I just want to say first, that I am a Photographer. I majored in Photojournalism long before I became a web designer. SO I am 100% for protecting our work online. However, this latest trend of extortion needs to be discussed. It disgusts me that there are photographers doing this as it only makes it harder for us to legitimately protect our work.
Copyright owners have begun cracking down on people using their work without license and suing for copyright infringement.
This is largely due to the new Image tracking software like PicScout and www.tineye.com which allows them to now search and find out who is using their image on their website, blog or even social media accounts without permission.
This means, if you took an image from the web, even if you thought it was free, they can and will find you and you will have to pay.
If you have a website or blog, you are liable for ALL content on it regardless of whether you put it there or even knew about it. That includes if you hired a web designer or allow users to post content! If you are caught, and you will be caught, you can be liable for paying damages.
What is copyright infringement?
Copyright infringement occurs when someone other than the copyright holder copies the “expression” of a work.
The most common defense to an infringement claim is “fair use,” which allows people to use copyrighted material without permission in certain situations.
To evaluate fair use of copyrighted material, the courts consider four factors:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of copying, and
- the market effect.
As with everything on the web, there is always those who are working the system to make money. Now, there is a rise in what is called copyright extortion. The technology is way ahead of people’s understanding of the issue, and this has made a very lucrative opportunity for unethical Lawyers and copyright owners who are making a business model out collecting on infringement claims through “copyright extortion”. Photographers seed the internet with their images by providing them to wall paper sites and royalty free sites. Then they sit back and wait for people to start sing them and send out threatening demand letters wanting compensation that is excessive. IN some cases, these people aren’t even the owners of the images. They send out mass letters waiting for people who are scared and will just pay rather than get a lawyer.
I have received a letter. Now what?
If you receive one of these notices its important you respond immediately and DO NOT IGNORE IT. Remember there are legitimate claims so you don’t want to take the chance of ignoring a demand.
Read the letter carefully. If you do have a license, simply respond with that information. If you are not sure, just REMOVE the image until you can look into it. If the letter is asking for compensation, make sure you are dealing with a legitimate request. Ask for proof of copyright and validate the demand is legitimate. Google the attornies name. Check the USPTO database to see if they are in fact the legal owner. Do some homework. When in doubt simply ask the folks at http://www.extortionletterinfo.com/. (be sure to donate if they help you!)
When you should be suspicious
If you are targeted by one of these firms or photographers, you will get a letter asking you to take the image down and to remit payment to avoid a law suit of $150, 000. They are clear to say that removing the image is not enough that the photographer deserves compensation and even if you didn’t know, you are responsible and they are unwilling to accept reasonable offers. Be prepared, these lawyers and photographer teams will be very insistent that you are a thief no matter if you knew or not, will not be reasonable and are not looking for a fair compensation based on how the image was used, where it was used, size, traffic to the site, how long it was up, etc.
This is why educating yourself is so important. Are fines as much as $150,000. YES! But only if the person has a valid copyright and only if you knowingly infringed. In a lot of cases people are innocent infringers and the court reduces fines to as low as $200 for innocent infringement.
- Use www.tineye.com to search the image you in question to see who owns it and where it is being used. If you see it available all over download sites in large format, this could be a red flag. It is rare that people sharing an image on these sites without the photographers knowledge, would have access to large file sizes, large enough to print.
- If you can prove you either weren’t the one who actually did it, for instance it was your webmaster OR if you can show that the image you downloaded is from one of those 3rd party sites (should be easy to show by the size and name of the image) then you are what is called an “innocent infringer” which means your infringment was NOT willful. The new law reduces fines to innocent infringers.
Just because you find the image on free download sites does not mean the photographer was seeding the internet. Although it is rare to find large format images on the internet, IN some cases their image was stolen. So again, go to the folks at ELI, this is a group of attorneys that have a forum where you can ask questions. The community there is very helpful.
As a website owner, you are responsible for your website, and liable for damages BY LAW regardless of whether you knew about it. The best way to avoid this situation is DO NOT TAKE IMAGES FROM THE WEB THAT YOU DON’T KNOW. PERIOD.
What you are trying to show here is that you were not a willful infringer and to protect from people using these laws to extort money from you. The law is still not that great in this area, as many people do not know IP law and are not aware they are doing anything wrong and this law is giving dishonest people a way to make money.
- NEVER USE AN IMAGE ON YOUR WEBSITE THAT YOU DO NOT KNOW. JUST BECAUSE AN IMAGE OR GRAPHIC IS AVAILABLE ON THE WEB DOES NOT MEAN IT IS SAFE. EVEN IF YOU FIND IT ON A WEB SITE OFFERING IT FOR FREE.
- If you provide images to your web designer, you must be sure you secure the proper permissions to use those images, it’s not the responsibility of the web designer to verify or research. It is also important that you make sure your web designer provides you with licensed images and don’t be afraid to ask for proof.
- IF YOU ARE WORRIED YOU MIGHT HAVE ILLEGAL GRAPHICS OR IMAGES PLEASE CONTACT YOUR WEB DESIGNER IMMEDIATELY AND REMOVE THEM. Don’t take chances. It costs less than $10 to find a licensed image.
This is not meant to replace legal advice. Please consult an attorney.
How to avoid legal issues: http://www.zyra.info/getstu.htm
More on intentional extortion: http://turnkeypublisher.com/2011/06/27/beware-of-stock-photo-entrapment-extortion-scam/